obliged to sue for such debts as he might reasonably expect to recover or to impower any of intestate's creditors to sue for outstanding debts. 321 Counsel Rattray, for demurrant, argued that under the Carolina charters the legislative power was limited to acts not repugnant or contrary to the laws of England, that despite the proprietary surrender of the charter the constitution of the province was unaltered. Therefore, the law of England at the time of the respective charter grants was to all intents and purposes the law of Carolina, since no provincial act could with propriety be passed contrary or repugnant to the law of England. By the subsisting laws of England at the charter dates administrators might retain assets in their hands, if their debts were in equal degree, to satisfy themselves. By the provincial act in question no time was given to marshal the assets of the intestate—a great hardship on the administrator, which the law of England had carefully avoided. By said laws of England an executor or administrator might pay himself or give preference in case the debts due were in equal degree. 322 Executors in equity, as well as at law, might prefer any creditor in equal degree, or after an action at law one creditor might confess judgment to another. 323 The instant act directed on the contrary that all debts of equal nature should be discharged by the administrator in average and proportion and was therefore repugnant to the laws of England. The word "average" was unknown to the laws of England concerning administrators, although common to the Civil Law. Further, the act could not extend to administrators de bonis non, since it must be strictly, and not equitably, construed. 324 Counsel Rattray concluded his argument with a supposition which though it has not yet, may possibly happen when a case of consequence may be determined judicially in the courts of law here agreeable to the letter of the act of Assembly, sub judice, in the case of an administrator creditor and other creditors. Suppose said he, there was an appeal interposed from the courts of this province in a regular gradation to the King in Council which is the dernier and constitutional way of determining all suits in the last instance from America. How would the judgment of his Majesty in his Privy Council upon that appeal be regulated? In all human probability by and agreeable to the laws of the mother country. If that should be the case then how unhappy must the case and situation of the 321 An Act to Direct Executors and Administrators in the Manner of Returning Inventories and Accounts o£ their Testator and Intestate's Estates, etc. (3 Stat, at Large So. Car., 666-68). 322 MS Journal So. Car. Court Common Pleas, 1754-63, 227-28. Cited in support were Wentworth, Office and Duty of Executors, 142; 1 Rolle Abr., 226; Blundivell v. Loverdell (1 Sid. 21); Warner v. Wainsford {Hobart 127); Briers v. Goddard {Hobart 250); Martin v. Whipper (Cro. Eliz. 114); Prince v. Rawson (1 Mod. 208). 323 Citing Waring v. Danvers (1 Peere Williams 295). 324 MS Journal So. Car. Court Common Pleas, 1754-63, 2.28-29.